STATE OF NEW JERSEY v. C.J.M.-G.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3412-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

C.J.M.-G.,1

Defendant-Appellant.

Submitted October 13, 2020 - Decided December 17, 2020

Before Judges Sabatino and Currier.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 13-02-
0305.

Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).

Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (David M. Liston, Assistant
Prosecutor, of counsel and on the brief).

1
We use the parties' initials to protect victim's privacy. R. 1:38-3(d)(10).
PER CURIAM

Defendant C.J.M.-G. appeals from a February 19, 2019 order denying his

petition for post-conviction relief (PCR). We affirm.

A jury convicted defendant of second-degree sexual assault, N.J.S.A.

2C:14-2(b) and second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a). The trial court sentenced defendant to a term of ten years in prison

subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the second-degree

sexual assault, and a concurrent term of five years on the second-degree

endangering the welfare of a child.

We affirmed defendant's conviction and sentence on direct appeal. State

v. C.J.M.-G, No. A-0820-15 (App. Div. July 6, 2017). The facts and evidence

were discussed in detail in our opinion and need not be repeated here. In

summary, defendant was accused of sexually assaulting his seven-year-old

stepdaughter, L.L., which she reported to a relative in 2012.

At trial, L.L. testified regarding the sexual assault. The State also

presented testimony from four witnesses who recounted what L.L. told them

about defendant's conduct. All four statements were deemed admissible under

the tender years hearsay exception, N.J.R.E. 803(c)(27). Three of the witnesses

testified to the abuse that occurred in 2012, while L.L.'s mother, T.L., testified

A-3412-18T1
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to an incident of sexual assault that allegedly occurred in Maryland in 2009. The

State also introduced into evidence L.L.'s taped police interview in which she

described the sexual assault and defendant's taped interrogation and subsequent

confession.

On direct appeal, defendant raised the following issues:

POINT I: THE PREJUDICIAL EFFECT OF
CUMULATIVE, REPETITIOUS TESTIMONY
ADMITTED PURSUANT TO N.J.R.E. 803(c)(27)
DENIED DEFENDANT A FAIR TRIAL AND
REQUIRES REVERSAL OF THE CONVICTIONS

POINT II: THE MAXIMUM 10-YEAR NERA
SENTENCE FOR A SECOND-DEGREE OFFENSE IS
MANIFESTLY EXCESSIVE AND SHOULD BE
REDUCED

We addressed and rejected both arguments. We concluded that the trial

judge properly exercised her discretion in admitting the corroborative statements

under Rule 803(c)(27). In addition, we upheld defendant's sentence because it

was supported by adequate evidence in the record.

Defendant filed a subsequent PCR petition, asserting trial counsel failed

to adequately investigate and interview witnesses and that both trial and

appellate counsel failed to raise the proper objection to T.L.'s testimony. In an

oral opinion issued on February 19, 2019, the PCR judge rejected defendant's

arguments. The judge noted that even if defendant received deficient

A-3412-18T1
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representation, he failed to show how it would have altered the outcome of the

trial and appeal. In addition, the judge noted that defendant failed to support his

inadequate investigation claim with the proper certifications or affidavits.

Before this court, defendant presents the following issues:

POINT I: THIS MATTER MUST BE REMANDED
FOR AN EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF COUNSELS' INEFFECTIVENESS

A. Trial and Appellate Counsel Failed
to Challenge The 2009 Maryland Incident
as Other-Crimes Evidence

B. Trial Counsel Failed to Conduct an
Adequate Investigation

The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

v. Washington, 466 U.S. 668, 687 (1984) and adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987). To prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-pronged test establishing

that: (1) counsel's performance was deficient and he or she made errors that were

so egregious that counsel was not functioning effectively as guaranteed by the
Sixth Amendment to the United States Constitution; and (2) the defect in

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performance prejudiced defendant's right to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Strickland, 466 U.S. 687, 694.

We begin by addressing defendant's argument that he received ineffective

assistance of counsel because trial and appellate counsel did not challenge T.L.'s

testimony under N.J.R.E. 404(b).

In 2009, defendant, T.L., and L.L. resided in a rooming house in

Maryland. L.L. told a fellow tenant named Guadalupe that defendant was

sexually abusing her. After Guadalupe relayed this information to T.L., she

confronted her daughter about the abuse. L.L. said she did not tell T.L. about

the incidents because defendant threatened to cut out her tongue. T.L. stated

she did not report the abuse to the police because she was financially dependent

on defendant.

When the State sought to introduce T.L.'s testimony at trial under Rule

803(c)(27), defense counsel objected, arguing it was unreliable and highly

prejudicial. After a hearing, as stated, the trial court permitted T.L.'s testimony

under the tender years exception.

In considering defendant's PCR petition, the PCR court noted trial counsel

only objected to T.L.'s testimony as inadmissible under Rule 803(c)(27).

A-3412-18T1
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However, even if counsel had raised Rule 404(b) as an additional ground for

excluding the testimony, the PCR judge determined it would not have changed

the outcome. He stated:

Even if these statements were excluded under 404(b),
the State presented other evidence sufficient to support
the charges for which the defendant was convicted.
Defendant was not charged with the assault alleged to
have occurred in 2009. The more relevant testimony
related to the 2012 assaults. L.L.'s statements to her
doctor and her family, as well as her recorded statement
to police, supported those charges. She also testified at
trial. The statements that potentially implicate 404(b)
were used to establish context in a timeline of events.
There is no indication that the outcome of the finished
trial would have changed if these particular statements
were excluded.

We recognize an analysis under Rule 404(b) is more stringent than the

Rule 403 balancing factors considered by the trial judge in determining the

availability of the tender years exception following a Rule 104 hearing. Under

Rule 403, a trial court has the discretion to exclude evidence if it finds the

prejudicial value of the evidence substantially outweighs its probative value.

State v. D.G., 157 N.J. 112, 128 (1999). However, under Rule 404(b), "[t]he

probative value of the evidence must not be outweighed by its apparent

prejudice." State v. Cofield, 127 N.J. 328, 338 (1992).

A-3412-18T1
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Here, trial counsel might have been successful in excluding the evidence

under Rule 404(b) and a Cofield analysis had the trial court found the probative

value of the proffered testimony was outweighed by its prejudice. However,

defendant did not establish the second Strickland prong – how the result of the

trial and direct appeal would have been different. If the evidence had been

excluded, as the PCR court correctly noted, there was ample other evidence to

support the jury's finding of guilt.

An ineffective assistance of counsel claim may occur when counsel fails

to conduct an adequate pre-trial investigation. State v. Porter, 216 N.J. 343,

352-53 (2013). Our Supreme Court has stated:

[i]f counsel thoroughly investigates law and facts,
considering all possible options, his or her trial strategy
is virtually unchallengeable. But strategy decisions
made after less than complete investigation are subject
to closer scrutiny. Indeed, counsel has a duty to make
reasonable investigations or to make a reasonable
decision that makes particular investigations
unnecessary. A failure to do so will render the lawyer's
performance deficient.

[State v. Savage, 120 N.J. 594, 617-18 (1990) (internal
quotations omitted).]

To establish a prima facie claim, defendant must do more than make bald

assertions that he was denied the effective assistance of counsel. State v.

A-3412-18T1
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Cummings, 321 N.J. Super. 154, 170 (1999). Defendant must allege facts

sufficient to demonstrate counsel's alleged substandard performance. Ibid.

When a defendant claims his trial attorney inadequately investigated the case,

he must assert the facts that an investigation would have revealed, supported by

affidavits or certifications based upon the personal knowledge of the affiant or

the person making the certification. Ibid.

In support of his application, defendant certified the following:

On November 20, 2012, my day off, I went to Trenton
to visit my child and my former girlfriend. I left New
Brunswick at around 6:30 a.m. When I left the
apartment, [T.L] was there. I told my lawyer the name
of my former girlfriend, Christina, but she was not
called to testify.

During the rest of Thanksgiving week, several people
were staying in the apartment with us. The apartment
was very crowded. I gave the names of the people who
were staying with us that week to my lawyer as well.

In addition, defendant produced an investigator's report that included

interviews with Christina Pelaez. The report states:

Ms. Christina Pelaez stated that she was never
contacted by defense counsel, or law enforcement with
questions about this case. Ms. Pelaez learned about the
case by corresponding with the client, [C.J.M.-G.]. Ms.
Pelaez stated that she would not have been against
being interviewed had she been contacted.

....

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Ms. Christina Pelaez recalls that [C.J.M.-G.] visited her
during the week of Thanksgiving in 2012. Ms. Pelaez
stated that it was either the Monday or Tuesday of
Thanksgiving week of 2012. Ms. Pelaez cannot
remember the exact time of arrival but stated that
[C.J.M.-G.] arrived at her house in the morning. Ms.
Pelaez remembers the visit because she gave [C.J.M.-
G.] a picture of their son during that particular visit.

Further investigation reports submitted in support of defendant's PCR

petition stated that three prospective defense witnesses tendered by defendant

could not be located.

In rejecting defendant's inadequate investigation claim, the PCR judge

stated:

The defendant filed a certification from one potential
. . . witness. . . . She certifies that the defendant visited
her in Trenton on the Monday or Tuesday of the week
of Thanksgiving in 2012. [The victim] accused the
defendant of committing the assaults during that week
as well. This witness's version of facts does not provide
an alibi for the defendant. Even if he were in Trenton
at some point during the week, he would also have spent
time in New Brunswick with [the victim]. It is not
unreasonable for defense counsel to conclude that this
witness would not have benefited [at] trial, and chosen
not to pursue that line of investigation.

The defendant does not present affidavits or
certification from the other witnesses he argues should
have been interviewed in preparation for trial. The
remaining witnesses allegedly include his downstairs
neighbor, and several house guests. The defendant's

A-3412-18T1
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investigator reported he could not make contact with
the other potential witnesses. It is unclear how these
witnesses could account for every moment of the
defendant's every day during the time period in
question. Defendant's own assertion that the witnesses
would have told his attorney and the jury that defendant
had never been alone with the victim is insufficient to
support his claim of failure to investigate. The
defendant therefore has not shown that his trial
counsel's decision not to interview and present these
witnesses at trial constituted deficient representation.

Even if the [c]ourt[] accept[s] that these witnesses
would have testified to those facts, there is no
indication that this proposed testimony would have
benefited the defendant at trial.

We discern no error in the court's determination.

Because defendant did not present a prima facie case of ineffective

assistance of counsel, he was not entitled to an evidentiary hearing.

Affirmed.

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